Former HealthSouth CEO Richard Scrushy is trying a new tactic in attacking his conviction on corruption charges related to a payment to former Alabama Governor Don Siegelman. According to a brief filed by his attorneys, available below, the federal criminal jurisdiction statute, 18 U.S.C. Sec. 3231, is unconstitutional because it was not properly passed by Congress in 1948. I won't pretend to follow the argument completely, but the gist is that the bill ultimately passed by Congress had not been properly introduced in the House because that body had adjourned sine die the previous year without being reintroduced, and then the Senate passed a different version of the bill that was not enrolled until after another adjournment.

While I suspect there's something amiss with this argument, it certainly wins points for creativity, but it may not have the effect Scrushy's legal team asserts as a basis for overturning his conviction. Section 3231 replaced previous statutes that granted the United States District Courts exclusive jurisdiction over federal criminal prosecutions. It has been a cornerstone of federal constitutional law that there are no common law federal offenses, the venerable proposition was first announced in United States v. Hudson & Goodwin, 7 Cranch 32 (1812) -- how often do you get to write that kind of citation. Since then, all federal prosecutions must be based on an identified statute and brought only in federal court unless the provision specifically allows for a state prosecution, something that many pre-Civil War laws authorized. Federal courts have long had jurisdiction over violations of federal statutes, so holding that the 1948 statute is unconstitutional because it was not properly passed would mean the prior statutes would still be valid and could not have been repealed or displaced by Section 3231. If that is the case, then the federal district court did have jurisdiction to try and convict Scrushy, albeit under a different provision of the federal criminal code. While certainly interesting, I suspect Scrushy's argument won't get much traction in the district court or the Eleventh Circuit.

Chief U.S. District Judge Mark Fuller finally set a sentencing date for Scrushy and Siegelman of June 26 (see AP story here), almost a year after the convictions. The judge still hasn't decided issues related to the jury selection process, so there may be more to come on that front, and with almost two months until sentencing, look for a lot more fireworks in this case. (ph)